Appeal from order of Superior Court, Oct. T., 1971, No. 1403, affirming orders of Court of Common Pleas, Family Division, of Philadelphia, Sept. T., 1965, No. 4101, Feb. T., 1968, No. 4035, and April T., 1968, No. 407, in case of Commonwealth ex rel. Fred Wright, a/k/a Fred Gordy v. Edward J. Hendrick, Superintendent of Philadelphia Prisons.
Dennis T. Kelly, Acting First Assistant Defender, with him Vincent J. Ziccardi, Defender, for appellant.
Benjamin H. Levintow, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Nix. Mr. Justice Roberts joins in this concurring opinion.
By his own admission Fred Wright, the appellant, is the father of three children born out-of-wedlock to
one Beverly Thomas, a resident of Philadelphia. On February 5, 1964, in proceedings instituted under the provisions of the Pennsylvania Civil Procedural Support Law,*fn1 in the County Court of Philadelphia (now the Family Court Division of the Court of Common Pleas), Wright was ordered to pay $5 weekly towards the support of one of these children. On September 20, 1965, in a separate proceeding under the same statute, he was ordered to pay $5 weekly towards the support of the second of these children. On April 15, 1968, in a third and separate proceeding under the same statute, he was ordered to pay $5 weekly towards the support of the third such child.*fn2
On May 28, 1971, Wright was brought before the Family Court Division of the Court of Common Pleas of Philadelphia via a writ of attachment for failure to comply with the aforesaid support orders. After a hearing during which Wright was without counsel, the court found that the total amount accrued under said orders was $4195; that Wright was credited with payments of only $213 since entry of the first order, and, hence, was in arrears in the amount of $3982. The court then entered the following order: "$1000 or six months in the House of Correction." The one thousand dollars was not paid and Wright was committed.
On July 13, 1971, habeas corpus proceedings were instituted on Wright's behalf contesting the validity of the commitment order. After a counseled evidentiary hearing on August 4th, habeas corpus was denied. An appeal was filed in the Superior Court, and that court on August 12th issued a writ of supersedeas staying the order of commitment pending appeal.*fn3 Subsequently,
the Superior Court unanimously affirmed the trial court's order denying habeas corpus by a "Per Curiam" order, without an opinion. See 221 Pa. Superior Ct. 756, 289 A.2d 176 (1972). We granted allocatur.
Inter alia, it is argued Wright's failure to comply with the support orders was due to indigency, and that imprisoning an indigent for failure to pay a support order violates the Equal Protection Clause of the United States Constitution. In view of the conclusions that ...